Joiner v. Allen et al (INMATE2)
ORDER that: 1. The 5 Recommendation of the Magistrate Judge is ADOPTED; 2. The motion for leave to proceed in forma pauperis is DENIED; and 3. This case be DISMISSED without prejudice for Plaintiff's failure to pay the full filing fee upon the initiation of this case. Signed by Honorable Truman M. Hobbs on 9/20/2010. (dmn)
J o i n e r v. Allen et al (INMATE2)
D o c . 10
THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION H E N R Y JOINER, #140 755 P l a i n t if f , v. C O M M ISSIO N E R , RICHARD F. ALLEN, et al. , D e f e n d a n ts . ) ) ) ) ) ) ) ) )
2 : 1 0 -C V -4 2 6 -T M H WO
O n June 4, 2010, the Magistrate Judge filed a Recommendation (Doc. 5) in this case to which no timely objections have been filed.1 Upon an independent review of the file in th is case and upon consideration of the Recommendation of the Magistrate Judge, it is O R D E R E D that: 1. 2. 3. T h e Recommendation (Doc. 5) of the Magistrate Judge is ADOPTED; T h e motion for leave to proceed in forma pauperis is DENIED; and T h is case be DISMISSED without prejudice for Plaintiff's failure to pay the
f u ll filing fee upon the initiation of this case.
On June 17, 2010, Plaintiff filed a Notice of Appeal (Doc. 6) as to the Recommendation. On June 21, 2010, the Court construed the Notice as a motion for leave to appeal in forma pauperis, and denied the motion (Doc. 7). "[A] premature notice of appeal does not divest the district court of jurisdiction over the case," United States v. Kapelushnik, 306 F.3d 1090, 1094 (11th Cir.2002), and "[a]n attempt to appeal a non-appealable order remains just that, an attempt[,] ... [and] a nullity," id. (internal quotation marks omitted). Because a Magistrate Judge's recommendation is not an appealable order under § 1292, this court may rule on the recommendation despite the notice of appeal.
D o n e this 20th day of September, 2010. /s/ Truman M. Hobbs S E N IO R UNITED STATES DISTRICT JUDGE
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